Greg Weeks: Comment on Australia: Protection of refugees who do not “live discreetly”

At the political level, Australia’s lamentable record of mistreating refugees is well established and is catalogued and critiqued elsewhere, such as by my colleagues at the Kaldor Centre for International Refugee Law. Within the scope allowed by Australia’s stringent migration legislation, the judiciary has a much stronger modern record in regard to protecting the interests of refugees who seek to resettle in Australia. In particular, the High Court has repeatedly made its position clear on the issue of whether a person who otherwise satisfies the legal requirements to be classified as a refugee can be turned away on the basis that s/he could have sought refuge elsewhere, including within his or her country of origin.

In the landmark S395 case, a majority of the High Court rejected the reasoning that, while two homosexual men from Bangladesh may not be able to live openly as homosexuals, they would be unlikely to suffer persecution if they were “discreet” about their sexuality. This amounted to a finding that Australia owes no protection obligations to refugees who are able to cease the conduct which is has caused, or would cause, them to be persecuted for one of the reasons specified in the Refugee Convention. In separate judgments, McHugh and Kirby JJ and Gummow and Hayne JJ identified the legal error inherent in such reasoning as being that the decision-maker had failed to engage with the basic question of whether the applicants themselves had a “well-founded fear of persecution”, as opposed to whether they could mitigate such a fear by acting in accordance with an objectively reasonable standard. As Gageler J put it in SZSCA, the principle that derives from S395 is that an asylum seeker cannot be expected “hide or change behaviour that is the manifestation of a Convention characteristic”. It does not apply to a case which “does not contemplate changed behaviour to avoid persecution but to avoid creating a wrongful perception of membership of a protected class”.

The persecution feared in S395 was “general and nationwide” and the joint judgment in SZSCA noted that such was not the case in the matter they were called upon to decide. The internal relocation principle might therefore apply if the applicant were able to avoid persecution by relocating within Afghanistan, although the Refugee Review Tribunal (RRT) had not considered the issue in those terms. It found rather that the applicant was likely to be safe from the Taliban if he remained in Kabul and ceased work as a truck driver transporting building materials. SZATV was also a case in which the RRT held that the applicant, having been found to have a well-founded fear of persecution for reason of his political opinions, expressed in the course of publishing journalism critical of corruption in regional government, was able to avoid the persecution he would suffer as a journalist in Chernovtsy by working as a construction worker in Kiev.

In the course of its decision in SZATV, the High Court accepted Lord Bingham’s analysis in Januzi v Home Secretary [2006] 2 AC 426 of how the internal relocation principle fits within the Refugee Convention. Both cases agree that the internal relocation principle will apply where it is reasonable to expect an applicant to have sought refuge in another part of his or her country of origin. Indeed, in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51, a case heard concurrently with SZATV, the High Court held by majority that the applicant should reasonably have sought refuge elsewhere within India. The application of the internal relocation principle appears to be more likely in countries of greater size.

In SZATV, the joint judgment of Gummow, Hayne and Crennan JJ accepted that that, for the purposes of assessing whether it is “reasonable” to expect an applicant to seek refuge within his or her home country, it is relevant to ask whether such a course of action would be “practicable”, which must in turn “depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”. The decision in SZATV turned upon the expectation that the applicant would “live discreetly” in another part of Ukraine, in the sense that he would cease the very activity that had caused him to suffer persecution in Chernovtsy. This is equivalent to telling the applicants in S395 that, if they must be gay, they should at least not appear to be gay. The High Court was correct to reject any such proposition.

The circumstances were different in SZSCA, in which the applicant had been a long term resident of Kabul (where the RRT held he would be safe from the Taliban) and therefore did not need to relocate to another part of Afghanistan in order to seek refuge. However, on focussing on this particular circumstance, the majority in the High Court held that the RRT failed to consider that the applicant’s living, and capacity to support himself and his family, relied on work that caused him to leave Kabul regularly. The RRT had instead assumed that the applicant could work as a jewellery-maker, as he had done previously in Jaghori. In essence, this was viewed as another expectation that a refugee should continue to “live discreetly” in his country of origin rather than seek refuge in Australia. Again, it has been swiftly rejected by a High Court majority, albeit over Gageler J’s compelling dissent. His Honour could not ascertain that the applicant belonged to a “particular social group” for Convention purposes and, consequently, saw SZSCA differently to either S395 or SZATV.

Notwithstanding the entirely reasonable concerns expressed by Gageler J, it is pleasing to see the High Court reiterate the legal position that a refugee cannot be expected to avoid persecution by ceasing the very conduct that the Convention protects. Refugees are given few breaks by Australian legislation. The continued judicial application of the principle first expressed in S395 may not redress this long-standing trend, but is in any case a welcome sign that the Refugee Convention retains importance in Australian law.

Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent. He was part of the legal team which acted for the applicant called SZATV in the High Court and subsequently represented him before the Refugee Review Tribunal.